Pandey (Migration)

[2023] AATA 3518

Pandey (Migration) [2023] AATA 3518 (20 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Asmita Pandey

REPRESENTATIVE:  Ms Michele Clayton

CASE NUMBER:  2211870

HOME AFFAIRS REFERENCE(S):          BCC2022/2330811

MEMBER:Kira Raif

DATE:20 October 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 20 October 2023 at 12:52pm

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – granted in association with application for further student visa – risk to health, safety or good order of community and criminal convictions – common assault – conditional release order, intensive corrections order and community service – discretion to cancel visa – no response to invitation to comment and loss of entitlement to hearing – student visa application in progress and intention to apply for another substantive visa if not granted – application for Bridging E visa in progress – current visa decision will not affect applicant’s ability to remain in Australia – hardship if visa cancelled – now divorced, so hardship to ex-husband not relevant – media reporting in Australia and home country – previous criminal offence and participation in rehabilitation program – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(e), (g), 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 2.43(1)(oa)

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 10 August 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Nepal, born in November 1996. She made an application for a Student visa on 24 February 2022 and was granted a Bridging A visa in association with that application. In July 2022 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that there were grounds for cancelling the applicant’s visa under s. 116(1)(e) of the Act. The applicant provided her response to the NOICC and her visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The issue in the present case is whether a ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Procedural history

4. On 27 September 2023 the Tribunal wrote to the applicant pursuant to s 359A of the Act, inviting her to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 11 October 2023, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The applicant has not provided the comments within the prescribed period and no extension has been granted. The applicant provided to the Tribunal various documents evidencing her interactions with her representative but it is not for this Tribunal to determine why the applicant did not respond to the Tribunal’s communication within the prescribed time.

6. The Tribunal finds that  s 359C applies and pursuant to s 360(3) the applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

7. On 12 October 2023 the Tribunal contacted the applicant’s nominated representative to see if the applicant intended to provide further submissions for Tribunal’s consideration. The representative informed the Tribunal that he no longer represented the applicant and that the Tribunal’s correspondence of 27 September 2023 was given to the applicant. On 12 October 2023 the Tribunal received advice that the applicant had appointed a new representative and a submission regarding her circumstances. The Tribunal granted the applicant more time to provide any further evidence she wished to rely. The applicant provided further written submissions to the Tribunal on 13, 19 and 20 October 2023 and the Tribunal has had regard to the applicant’s written evidence in reaching its decision.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

9. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

10. As noted above, the delegate made the decision that there were grounds for cancelling the applicant’s visa under s. 116(1)(e) of the Act. The primary decision record (a copy of which the applicant provided to the Tribunal) indicates that at the time the primary decision was made, the applicant was charged with a number of offences. However, information before the Tribunal indicates that since that time, the applicant has been convicted of a number of offences. In these circumstances, the Tribunal considers that the application of s. 116(1)(g) and r. 2.43(1)(oa) may be more appropriate. The Tribunal wrote to the applicant indicating its intention to consider a different ground for cancellation of her visa.

11. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). Regulation 2.43(1)(oa) provides the following

    (1)   For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

    (oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))

    Does the ground for cancellation exist?

12. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that she was granted a Bridging A visa (BVA) in association with her application for a Student visa in February 2022.

13. As noted above, at the time of the primary decision, the applicant had been charged with a number of offences. A search of open sources (such as the internet) indicates that since that time the applicant has been convicted of four counts of common assault.[1] In her submission to the Tribunal of 13 October 2023 the applicant provided a copy of her Conditional Release Order, as well as media reports relating to her convictions, which she claims were published in Nepal.

    [1] Former nursing assistant Asmita Pandey pleads guilty to assaulting aged care residents | SBS Nepali; Former nursing assistant sentenced for slapping aged care residents - Hellocare

14. In her declaration dated 19 October 2023 the applicant states that she intended to plead not guilty as she had not done anything wrong but she entered the guilty plea on the advice of her criminal lawyer. The applicant has indicated that she may wish to appeal the conviction and states that she is seeking legal advice. However, the Tribunal is not able to go behind the conviction and, unless and until the conviction is overturned, the Tribunal is satisfied that the fact of the conviction can be taken as evidence that a crime has been committed.

15. Having regard to the above evidence, the Tribunal finds that the applicant was a holder of a temporary (Bridging A) visa other than a Bridging E visa or a Special Category visa. The Tribunal finds that the applicant had been convicted of offences. The Tribunal thus finds that there are grounds for cancelling the applicant’s visa under s. 116(1)(g) and r. 2.43(1)(oa).

    Consideration of discretion

16. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

17. The applicant travelled to Australia as a holder of a Student visa and her Bridging visa, that is the subject of this review, was granted in association with her application for a further Student visa.

18. In her statement dated 12 October 2023 the applicant states that her aspiration is to study further, achieve a high level degree and pursue a career in her chosen field. The applicant has indicated in her subsequent submissions that her Student visa remains undetermined. The applicant indicated that  if she is not granted the Student visa, she intends to apply for another substantive visa in Australia.

19. The Tribunal is mindful that the application for the Student visa is not dependent on whether or not the applicant holds a Bridging visa, although the Tribunal also acknowledges that an exclusion period may apply as a result of the cancellation of the BVA.

20. The applicant’s evidence indicates that irrespective of the outcome of this review, the applicant is pursuing a Student visa and also intends to apply for another substantive visa even before her Student visa application is resolved. The Tribunal finds that the decision relating to the Bridging visa will not affect the applicant’s ability to remain in Australia to await the outcome of either of the two applications but may affect the outcome of the Student visa application.

21. The applicant refers to the hardship she may experience upon return to Nepal and she provided a number of country reports to the Tribunal. The Tribunal is mindful that the applicant does not hold a substantive visa that would enable her to remain in Australia and not return to her home country. The bridging visa that is the subject of the present review is not designed to allow the applicant to live in Australia for other period other than the duration of the processing of her Student visa. That visa is not designed to enable the applicant to avoid the problems she thinks she would experience in Nepal.

22. The Tribunal is not satisfied the applicant has a compelling need to remain in Australia and, significantly, the Tribunal does not consider that  the BVA is an appropriate vehicle that would enable the applicant to remain in Australia to avoid the problems she thinks she would experience in Nepal.

23. In the Tribunal’s view, this consideration is neutral.

    The extent of compliance with visa conditions

24. There is no evidence before the Tribunal of any non-compliance with visa conditions.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

25. In her submission to the delegate the applicant provided a statement from her partner. He describes the earlier domestic violence incident. He states that it is their intention to apply for a Skilled visa and, for various reasons, he would not qualify for the visa as the primary applicant and would need to rely on his wife. (The applicant’s submission of 20 October 2023 suggests that he did apply for a Skilled visa as a primary applicant.) The applicant’s partner states that to lose that opportunity would be devastating for both. The applicant’s partner states that they want to finish their studies and get permanent residence and it would be hard for them to return to Nepal. If the visa is cancelled, they would have to live separately in different counties, which would be difficult personally and financially.

26. In her submission to the Tribunal of 13 October 2023 the applicant states that she and her partner had divorced and in her declaration of 12 October 2023 the applicant also refers to being single. In her submission of 20 October 2023 the applicant states that her partner had applied for another visa and she has been removed from that application. In the circumstances, the Tribunal does not consider that the cancellation of the applicant’s visa would cause any hardship to her partner.

27. The applicant refers to an unsuccessful pregnancy and while the Tribunal accepts that this would have caused significant distress to the applicant, the Tribunal does not consider this was the result of her visa status.

28. The applicant states in her declarations of 12 and 19 October 2023 that she lives with her younger brother. The applicant refers to the emotional, psychological and financial effect that the circumstances have had on her and the applicant presented to the Tribunal a statement from the psychologist. In her submission of 19 October 2023 the applicant states that she cannot return to Nepal without qualifications and her family cannot support her forever. She also states that she wants to be able to support her parents in the future, as is their expectation. The applicant refers to her case being published and misrepresented in Nepal, she states that she has been ostracised from the community and will face discrimination in Nepal. The applicant presented some country information regarding her home country.

29. The Tribunal is prepared to accept the applicant’s evidence, and also accepts that the applicant’s circumstances have received significant media attention in Australia and overseas. The Tribunal accepts that these circumstances may have caused psychological hardship to the applicant (although it is not apparent that the hardship was caused by the cancellation of the visa, rather than the circumstances leading to the convictions and the attention surrounding the conviction). The Tribunal also accepts that the applicant may have experienced financial hardship if she was unable to work due to her visa being cancelled and her evidence is that she has been relying on her savings and financial support from her family.

30. The applicant states that if her visa is cancelled, and if she is to make an application for a substantive visa, she would be eligible to apply for a BVE but may not have permission to work. In her declaration of 19 October 2023 the applicant states that she had previously made an application for the BVE which has not been decided and if it is refused, she would be detained as an unlawful non-citizen. In her submission of 20 October 2023 the applicant confirmed that her previously made application for the Bridging E visa has not been finally determined.

31. The applicant states that even if the Bridging E visa is granted, she might not get permission to work or study or she might be detained.  In the Tribunal’s view, these submissions are purely speculative. The applicant is eligible to make an application for a BVE if she has made an application for a substantive visa that has not been finally determined (and she has indicated her intention to make an application for a substantive visa if she cannot get the Student visa). The applicant will be eligible to seek permission to work if she can establish that she experiences financial hardship. It is speculative to state that she would not be granted permission to work.

32. Generally, the Tribunal accepts that the cancellation of the Bridging visa may result in the applicant not being eligible to the grant of the Student visa due to the exclusion period. The Tribunal accepts that it is the applicant’s desire to remain in Australia and acknowledges her evidence that she may experience hardship if she is to return to Nepal (although the applicant has also indicated her intention to seek another visa in Australia). The Tribunal accepts that there can be no guarantee that the applicant will be granted a Bridging E visa or any other visa and that there is at least a possibility that she would become an unlawful non-citizen. It appears that the applicant may be eligible to the grant of the BVE if she has an outstanding application for a substantive visa and if her application for the BVE is refused, it may be the consequence of the applicant’s criminal conviction rather than the cancellation of the BVA.

33. The Tribunal accepts that the applicant’s migration plans may be adversely affected if the BVA remains cancelled. The Tribunal accepts that the cancellation of the visa would cause hardship to the applicant. This consideration weighs against the cancellation.

    Circumstances in which ground of cancellation arose

34. The ground for cancellation arises because the applicant has been convicted of offences and held a temporary visa.

35. In her response to the NOICC the applicant denied the allegations, stating that she had entered a not guilty plea and stated that she strongly denies all of the allegations. The applicant noted that she was granted bail, indicating she is not a risk to any segment of the community. The applicant also suggested that the interim order of the Health Care Complaints Commission should not be equated to a finding of guilt.

36. Since these comments were made, the applicant’s circumstances are now different as she has been convicted of the offences and, therefore, her commission of the offences has been proven. In her submission of 13 October 2023 the applicant concedes that the offences were abhorrent but notes that the court did not insist on a custodial sentence and there was no process to cancel under s. 501 all of which indicate that a ‘less condemning attitude’ to her may be justifiable. In her submission of 20 October 2023 the applicant’s evidence seems to have again changed as she denies having committed the offences and states that she pleaded guilty at the suggestion of her lawyer.

37. As noted above, the Tribunal is of the view that the convictions represent proof that the offending conduct took place. In considering the circumstances of the offending, the Tribunal has had regard to the information recorded in the decision of the Health Care Complaints Commission (HCCC). The following is a summary of that information

    The applicant was employed as an Assistant in Nursing at Estia Health from February 2018 until her termination in May 2022. She was charged with four counts of common assault and pleaded guilty. She was convicted of the four common assault charges at Parramatta Local Court on 17 March 2023 and was sentenced to an 8 month Intensive Corrections Order (aggregated) and 30 hours of community service work.

    During he investigation, the Commission obtained information from NSW police. It is reported that there were 5 elderly residents between the ages of 82 and 95 who were victims of Ms Pandey’s conduct. Each was a dementia patient. The applicant is reported to have told other staff members that she had punched one victim in the face after putting her to bed. It is alleged that  on another occasion a witness saw the applicant slap a victim across the face twice. On a third occasion, it is alleged the applicant slapped another victim with an open hand across the face. On the fourth occasion it is alleged that the applicant was seen using a shower head to hit another victim on top of her head three to four times while assisting the victim to shower. On the fifth occasion, it is alleged that the applicant used an open hand to slap another victim on the side of the head and used a closed fist to punch the victim.

    In her statement to Estia health, the applicant denied the allegations and stated that the conduct was ‘not in her nature’. However, Estia found that on the balance of probabilities, the allegations were substantiated.

1. The applicant provided in her response to the NOICC a number of documents, including evidence of her participation in a Positive Lifestyle Program (which seems to have been arranged after the applicant was found guilty of another domestic violence offence). In her submission to the Tribunal of 12 October 2023 the applicant also outlined the rehabilitation  she claims to have achieved and the programs completed. The applicant provided several character references in her submission to the Tribunal, as well as copies of the materials previously submitted to the Court. The Tribunal accepts that the applicant had completed rehabilitation programs and also acknowledges the evidence in the psychological report. The Tribunal also acknowledges that the court imposed a non-custodial sentence. However, in her submission of 20 October 2023 the applicant seems to suggest that the earlier submissions were prepared by her previous lawyer and the reference to the ‘abhorrent’ nature of her offending and rehabilitation were matters on which her previous lawyer had insisted. The applicant’s most recent submissions do not suggest that the applicant feels any remorse for the conduct, which she denies but which had been proven through the convictions. 

2. Having considered the nature of the offending, which involved violent conduct in relation to the most vulnerable members of the community, the Tribunal is of the view that this consideration weighs heavily in favour of the cancellation.

   Past and present behaviour of the visa holder towards the department

3. Nothing adverse is known about the applicant’s past and present behaviour toward the Department. This consideration is neutral.

   Whether there would be consequential cancellations under s 140

4. The applicant’s response to the NOICC indicates that she is married to Mr Laxman Gautam and her submission to the delegate suggests that if her visa is cancelled, Mr Gautam’s visa options may also be affected. However, the applicant’s evidence to the Tribunal is that her relationship with Mr Laxman has now ended and that he has made another application for a visa.  

5. There will be no consequential cancellation under s. 140 if the applicant’s visa is cancelled.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

6. If the applicant’s visa is cancelled, and if she does not have another visa, the applicant would be an unlawful non-citizen and would be subject to detention and removal from Australia. As noted above, the processing of the applicant’s Student visa application is independent of the present cancellation and the applicant would be permitted to remain in Australia to await the outcome of that process, although the Tribunal acknowledges that  the applicant would be subject to an exclusion period which might affect her Student visa application, if her BVA is cancelled. If the applicant is not granted another visa, she may be detained as an unlawful non-citizen. If the applicant’s visa is cancelled, she can make an application for another visa in Australia but would be limited in the types of visas she can apply for onshore. Her evidence to the Tribunal is that she intends to apply for another visa before her Student visa application is resolved.

7. These factors weigh against the cancellation insofar as the applicant’s Student visa application may be affected but the Tribunal also notes that the applicant will be able to apply for another substantive visa which she intends to seek irrespective of the outcome of the present review.

   Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

8. There are no children who would be affected by the cancellation. The applicant has outlined the reasons why she may experience harm if she is to return to her home country, noting that her conviction has been widely publicised and misrepresented. The applicant provided to the Tribunal general country reports concerning Nepal. However the Tribunal has formed the view that the cancellation of the applicant’s Bridging A visa would not result in the applicant being required to leave Australia, at least while she has another visa process on foot. In these circumstances, the Tribunal finds that the cancellation of the visa will not result in Australia’s non-refoulement obligations being breached in this case and in her submission to the Tribunal of 13 October 2023 the applicant condes that there is no claim that Australia’s international obligations would be breached as a result of the cancellation. This consideration is neutral.

   If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

9. The visa in question is not a permanent visa.

   Any other relevant matters

10. The applicant refers to her youth and the time needed to ‘put back together her character and purpose in life’ with her personal losses and fears of returning to Nepal. The Tribunal acknowledges these submissions but does not accept that the cancellation of the applicants’ bridging A visa – particularly in circumstances where that will not result in her having to leave Australia – precludes the applicant from putting together her character and purpose in life.

11. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant was a holder of a temporary visa and that she had committed offences. The Tribunal found that there are grounds for cancelling her visa.

12. The Tribunal is prepared to accept that some hardship may be caused by the cancellation of the visa but in the Tribunal’s view, such hardship would be reduced by the fact that the cancellation of the Bridging visa will not result in the applicant having to leave Australia and that her application for the Student visa will continue to be processed irrespective of the outcome of this review. The Tribunal also notes the applicant’s stated intention to apply for another substantive visa onshore. The Tribunal has rejected the applicant’s claim that she would not have permission to work if she is granted a Bridging E visa as the Tribunal finds that submission speculative. The applicant’s eligibility for being granted BVE with permission to work will not be in any way dependent on the outcome of this review.

13. The Tribunal accepts that the applicant wants to remain in Australia, pursue further study and rebuild her future. As noted above, the decision to cancel her Bridging A visa does not equate to the requirement for the applicant to leave Australia and although the Tribunal accepts that the applicant may not be granted the Student visa, she has indicated her intention to seek another visa in Australia. As for the applicant’s desire to rebuild her life, it is not entirely clear to the Tribunal why that can only happen in Australia, noting in particular that the applicant does not have a permanent visa (or even a temporary visa at present) to remain in Australia.

14. The Tribunal has found that Australia’s international obligations would not be breached as a result of the cancellation. There is no evidence of past non-compliance with visa conditions and no consequential cancellations.

15. In the circumstances of this case, the Tribunal has decided to give greatest weight to the circumstances in which the ground for cancellation arose and the circumstances of the offending. As noted above, the offending involved harm to the most vulnerable members of the community who relied on the applicant for care and support. In her submission to the Tribunal the applicant also described an incident with her partner which resulted in the AVO being issued. In one of her submissions to the Tribunal the applicant has expressed remorse for her conduct and stated that she had completed some rehabilitation programs and sought counselling but in a later submission she suggests that she has done nothing wrong and intends to appeal the convictions.

16. The Tribunal accepts that the applicant is not permitted to work in the same environment however it is not necessary for the Tribunal to determine the degree of risk that the applicant would reoffend. 

17. Considering the circumstances as a whole, the Tribunal has decided that the visa should be cancelled

    DECISION

18. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Kira Raif
    Senior Member